Blackmun: Roe was a doctor’s rights case, you know

posted at 10:01 am on January 22, 2014 by Ed Morrissey

Former Supreme Court Justice Harry Blackmun passed away in 1999, but his legacy as the author of Roe v Wade lives on — even if 55 million of its victims have not. Chapman Law professor Ron Rotunda recalls a reflection given by Blackmun 21 years later to a group of lawyers at an Aspen Institute conference, at which Rotunda took copious notes and quotes. Rotunda offers his own recollection of the strange conversation and circumstances in today’s Chicago Tribune, including Blackmun’s insistence that Roe was a doctor’s rights case, and not a women’s rights issue:

He would take no questions; he spoke from notes. His wife Dottie sat next to him, wearing a T-shirt that said, “The Supreme Question: Row vs. Wade.” Underneath it was a cartoon of a man rowing while another was wading in the water. I was surprised that she treated the topic as a joke. …

He objected that “academic opinion was generally adverse” to Roe as not grounded in law and said that he thought it was unconstitutional for the government to fail to fund abortions for poor people.

The Constitution gives federal judges lifetime appointments, so that they don’t feel compelled to follow public opinion in deciding cases. Blackmun, however, apparently did follow it. He was pleased that a “New York Times editorial was in favor,” but noted that letters to the editor “were divided.”

Roe “protected the woman’s right, with the physician, to get an abortion.” Blackmun emphasized the italicized phrase with his voice. He spoke of the case as a doctor’s rights case, not a woman’s right case. In Roe, Blackmun said, for the first trimester, “the attending physician, in consultation with his patient, is free to determine, without regulation by the state, that, in his medical judgment, the patient’s pregnancy should be terminated.” Note that the right was the right of the physician, whom Blackmun assumed was male.

Blackmun explicitly rejected the argument that “one has an unlimited right to do with one’s body as one pleases.” Instead, in Roe, Blackmun cited, with approval, Buck v. Bell, a 1927 case that approved of compulsory sterilization.

He closed by saying, “it has been exciting to be in the center of the issue so politicized by the political branches.” He added, “I make no apologies for the scholarship or result in the opinion.” His last words on Roe, “I’m really not too bad a guy after all.”

Blackmun expressed surprise at the amount of criticism over his decision and opinion, and the fact that he got picketed by protesters at a speech in Cedar Rapids, Iowa on one occasion. Blackmun sniffed at Justice Byron White’s impassioned dissent and reference to “raw judicial power,” referring to it as “emotional,” and bragging that he “made Byron eat those words” in later decisions.

Blackmun may have defended his legal reasoning to the bitter end, but he would be in a shrinking minority today. Even those on his own side think it was poorly decided, and for at least one of the reasons Blackmun stated in his defense. Ruth Bader Ginsburg said Blackmun went “too far, too fast,” and ended up catalyzing the pro-life community by essentially tying it to a right to privacy, as TPM reminds us today:

Her pique is that the Roe opinion, written by Justice Harry Blackmun, relies on a “right of privacy” under the 4th Amendment and emphasizes the right of physicians to practice medicine as they see fit. She prefers that abortion rights be recognized under the equal protection clause of the 14th Amendment, based on the view that having a child should be a woman’s choice.

Ginsburg has also said that the ruling damaged the growing movement for abortion rights by going “too far, too fast” and catalyzing the conservative pro-life community. Her words ring truer than ever today as the movement that was then on the decline has since has been successful at unwinding Roe protections in the Supreme Court and has dramatically curtailing abortion rights in red states, potentially nudging the issue back to the justices in the foreseeable future.

“That was my concern, that the court had given opponents of access to abortion a target to aim at relentlessly,” she told students at the University of Chicago Law School, as reported by The Associated Press. “My criticism of Roe is that it seemed to have stopped the momentum that was on the side of change.”

As John Fund notes, that makes it more or less a consensus in favor of seeing Blackmun’s activism as bad law and worse politics:

“One usually doesn’t speak about the conference of the U.S. Supreme Court,” Blackmun began as he read from his own notes, but he said he thought it was important to “promote understanding of the Supreme Court.”

“I decided it,” he said of the infamous case.

His decision lives with us today. NRO’s Ed Whelan has said Blackmun’s majority opinion “is rivaled only by Dred Scott as the worst opinion in Supreme Court history.” One of Blackmun’s own former clerks, Edward Lazarus (who described himself as “someone utterly committed to the right to choose [abortion]” and as “someone who loved Roe’s author like a grandfather”), aptly put it, “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible.”

But did Blackmun have any choice? A 14th Amendment-based ruling would have to take into account the equal application of law to both the woman and the human life that gets snuffed out in abortion. The scientific understanding of human life’s beginning at conception — when the sperm meets the egg and combines to create a unique organism that demonstrates its vitality through growth — was not as strong in 1973 as it is today, for a variety of reasons — better photography demonstrating embryonic development not least among them, but also the near-universal availability of ultrasounds and better messaging from the pro-life movement.

The ultimate question isn’t actually about religion or faith, but whether one human being has the right to kill another for the sake of convenience — which indeed would present a huge problem if considered under the terms of the 14th Amendment and equal protection under the law. So far, we’ve killed 55 million human lives on the scientifically ignorant premise that either they’re not really human or they’re not really alive, or the ethically bankrupt notion that one human life isn’t as important as another and can be tossed away when inconvenient. That’s the actual issue at stake in today’s March for Life.

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You also don’t understand that all Roe v Wade did was federalize abortion rights. If Roe were overturned it would not outlaw abortion. It would return it to the states. Some states would allow it and others would not.

I am appalled at the lack of understanding that you and other “constitutionalists” have of the actual document.

jerryofva on January 22, 2014 at 11:10 AM

This is what bothered me about Ed’s line ‘…Roe v Wade lives on — even if 55 million of its victims have not.’
I know Ed was being creative here and don’t think he has the same misunderstanding of the ruling as noted by you, but so many do.

Just as many concerned about drug abuse are finally seeing the failure of the ‘war on drugs’ – some day pro-lifers will see the failure of their ‘war on abortion’.

The problem with a number of issues the Supreme Court gets involved in is that they only exacerbate the problem by not allowing the country to have a real voice in finding a mutually acceptable solution. They, in many cases, only create a larger divide between people.

Why would there be any incentive to reduce the number of abortions, if there is nothing wrong with having them?

Just as many concerned about drug abuse are finally seeing the failure of the ‘war on drugs’ – some day pro-lifers will see the failure of their ‘war on abortion’.

verbaluce on January 22, 2014 at 1:46 PM

I for one know that this is a hearts-and-minds war and will not be won legislatively. But if I spend every day for the rest of my life “failing”, I will never once flinch from defending the human right to life. And I see no reason that our laws should support the taking of innocent life, and less reason still that you should compare it to a person’s choice about what they decide to poison their body with (my preference is soda).

As Rush and I think others have pointed out, what will the pro-abort crowd say if science eventually discovers some gay genome and that can be detected in utero? It’d be pretty amusing to watch the gay mafia fighting the pro-abort cartel over their very existence.

crrr6 on January 22, 2014 at 1:46 PM

Imagine all these young newly pregnant liberal women and their husbands finding out the kid will be gay. The hypocrisy will be epic when 99% of liberal hubbies and wives quietly decide to abort the gay.

Conservatives are also split on this. Libertarians are considered conservatives by most people who post at Hot Air. They are in favor of abortion rights so you have made a false statement based on emotions.

His reasoning is conservative because he put a constraint on the power of the state to dictate what a physcian can and cannot do. If the Courts use this reasoning then socialized medicine is off the table.

jerryofva on January 22, 2014 at 11:03 AM

And you made a false statement based on emotion. Libertarians are not conservatives. There are some libertarian leaning conservative and vice versa, but they are not the same thing. Furthermore, LIbertarians are NOT in favor of abortion “right.” Libertarians are extremely split on the issue. Many like me, want the state to decide at worse, and at best want it abolished, because part of the libertarian philosophy is “rights for you as long as it doesn’t effect me.” Abortion effects another human life.

This is what Im saying; imagine standing a few feet in front of you ate standing 15 week pregnant woman and a woman holding a 15 week old baby. Not counting yourself, how many individuals are present?

beselfish on January 22, 2014 at 1:47 PM

You want the scientific or legal argument? Because if you want the scientific then there is THREE humans present. A fetus is human being in the earliest stages of development. Just like an infant does not look like an adult. Furthermore, if your definition of an “individual” is not being dependent on others for your life, then an baby, child and infirmed elderly people aren’t individuals.

If you want the legal definition, well again depends. Abortion, the “fetus’s” life isn’t considered, but in most states if you take a gun and shoot said pregnant woman– you could and WILL be charged with two murders.

I for one know that this is a hearts-and-minds war and will not be won legislatively. But if I spend every day for the rest of my life “failing”, I will never once flinch from defending the human right to life. And I see no reason that our laws should support the taking of innocent life, and less reason still that you should compare it to a person’s choice about what they decide to poison their body with (my preference is soda).

The Schaef on January 22, 2014 at 1:52 PM

The comparison was the approach.

I don’t share your certainty about the issue any more than I do that of some on the other side of the issue.
But I do see it as clearly preferable that an unwanted pregnancy not occur, thus rendering the issue moot.
And that requires education and access to sex ed.
Improvements happening for sure.

Not a debate or discussion I’ll have in this forum.
But as you are clear, then your efforts should be focused on reducing unwanted pregnancies….as that what is what leads to abortions.
Assuming you have no issue with birth control or sex education, your advocacy and support for such should be robust.

Four. Why do you presume the answer would be any different, especially when 15 weeks is out of your arbitrary designation of the first trimester?

The Schaef on January 22, 2014 at 3:12 PM

Oops I meant four in my response as well. Thought the pregnant woman was holding the baby.

I don’t understand the arbitrary time frame on abortion either. Viability is a medical term that is in flux. Rights do not change based on medical evolution. Viability changed from 27 weeks (when Roe) to as early as 21 weeks now.. If it is a life at 15 weeks then it is at 12.. Nothing changed but more development.

Furthermore, his “individual” test does hold true, since babies have been born from test tubes. Were they not individuals while in the tube?

Its like these people say– “well 15 weeks, is what I can live with and put it out of my mind.” It is an idiotic number that has NOTHING to do with legal rights or scientific facts, but more to do about their emotional responses.

Not a debate or discussion I’ll have in this forum.
But as you are clear, then your efforts should be focused on reducing unwanted pregnancies….as that what is what leads to abortions.
Assuming you have no issue with birth control or sex education, your advocacy and support for such should be robust.

verbaluce on January 22, 2014 at 3:32 PM

You are as naïve. “Unwanted pregnancies has LESS to do with education and more to do with laziness and irresponsibility. According to your ilk, with birth control and Plan B available one every corner-then why is there still abortions happening in the millions. BTW, condoms and birth control are much cheaper than an abortion, so don’t give me funding crap, mmkay..

My son has never had sex education from the school, and yet at 14 he knows that if he has sex unprotected, odds are he will get a girl pregnant. Heck, you can learn that on MTV..

Yes, by all means, don’t talk about abortion on a thread attached to an abortion article.

But as you are clear, then your efforts should be focused on reducing unwanted pregnancies….as that what is what leads to abortions.
Assuming you have no issue with birth control or sex education, your advocacy and support for such should be robust.

verbaluce on January 22, 2014 at 3:32 PM

What’s your point in posting this? I never said word one against sex education, and if those are the issues that truly matter to you, then abortion isn’t the issue and shouldn’t even be on the table. And yet, here we are, with people fighting to their last breath for “reproductive rights”.

But as you are clear, then your efforts should be focused on reducing unwanted pregnancies….as that what is what leads to abortions.

verbaluce on January 22, 2014 at 3:32 PM

Something else I neglected in my last response: should I use this logic to campaign for legalized theft, because people’s efforts should be focused on reducing the things that cause people to steal? Or to be more direct, should we abolish murder laws and tell people to focus on gang intervention?

Either the law exists to protect a person’s rights, or it does not. If it does, then there is absolutely no shame in advocating law that defends that most precious of human rights: life.

So by your logic (and, evidently, your compadre, melle) each time someone is infected by a bacteria they cease to be individuals? A bacteria is another being that can attach to you.

Psst, he was pointing out the absurd argument that you were making. You claim a baby in the womb isn’t an individual, because it is attached to someone. The logical end of that is that a pregnant women would no longer be an individual because she is attached to a baby.

What’s your point in posting this? I never said word one against sex education, and if those are the issues that truly matter to you, then abortion isn’t the issue and shouldn’t even be on the table.

The Schaef on January 22, 2014 at 3:37 PM

Really…you see no correlation?
My point is clear. You acknowledge that the legislative approach on abortion will fail. So endeavor to societally reduce and prevent unwanted pregnancies and you’ll be reducing and preventing abortions.

No, I acknowledge that people are not going to recover from the conditioning foisted on them by the media and the government and pro-abort advocates just because the law is changed. If we just pass the law and walk away, then all the doomsday bogeyman predictions will start to come true because people have been deceived into thinking they have no other alternative in life.

So endeavor to societally reduce and prevent unwanted pregnancies and you’ll be reducing and preventing abortions.

verbaluce on January 22, 2014 at 4:52 PM

Again, this is not an either/or situation, and it’s dishonest of you to behave as though people are treating it that way. Should civil rights leaders have focused on supporting minority initiatives instead of ensuring that the laws were protecting their rights?

The science is settled on the dawn of human life; there is no intelligent debate — the abortionists are monsters and we all know it.

The legal debate is long settled on Roe — there are virtually no legal supporters of the comical decision.

The only remaining debate is how an utter imbecile like Harry Blackmun, whose every utterance on Roe from 1974 until his overdue death makes him sound mentally retarded, ever garnered the legal or political admiration required to be appointed and confirmed as a Supreme Court justice.

Dick Nixon’s appointment of Blackmun leaves a far worse legacy for that piece of sh1t than his corruption in the Watergate scandal.

You are as naïve. “Unwanted pregnancies has LESS to do with education and more to do with laziness and irresponsibility. According to your ilk, with birth control and Plan B available one every corner-then why is there still abortions happening in the millions. BTW, condoms and birth control are much cheaper than an abortion, so don’t give me funding crap, mmkay..

My son has never had sex education from the school, and yet at 14 he knows that if he has sex unprotected, odds are he will get a girl pregnant. Heck, you can learn that on MTV..

melle1228 on January 22, 2014 at 3:35 PM

Yeah, artificial birth control measures fail. A lot. Why do you think PP gives away ultra-low dose pills you are supposed to take at the same time every day or they won’t work? To keep their resume stream intact.

This is what Im saying; imagine standing a few feet in front of you ate standing 15 week pregnant woman and a woman holding a 15 week old baby. Not counting yourself, how many individuals are present?
beselfish on January 22, 2014 at 1:47 PM

Take the same group. A murderer unlawfully kills them. How many counts will he be tried in your state?

You haven’t answered their actual question, though: if a mother retains her individuality while attached to a baby, by what reason do you say a baby attached to a mother is not an individual?

The Schaef on January 22, 2014 at 4:37 PM

An individual, as I’ve said in this thread is a separate entity AND a rational human being. Rational meaning an individual has a particular mind and consciousness. So, there’s more to being an individual than simply being separate. Not only is the embryo not separate but it is not rational.

Beselfish, 10:00pm I rarely have the time to comment, but i had to make time for you. You teuly are an idiot. According to you, my 21 month old, who has no capacity for rationalization, is therefore not an individual. The holes in your “logic” are big enough to drive a bus through.

An individual, as I’ve said in this thread is a separate entity AND a rational human being. Rational meaning an individual has a particular mind and consciousness. So, there’s more to being an individual than simply being separate. Not only is the embryo not separate but it is not rational.

beselfish on January 22, 2014 at 10:00 PM

And I’ve said earlier that your response is not satisfactory; your parameters are arbitrary and illogical.

I have already pointed out that there are numerous cases where having been born does not automatically commit rational thought to a person. And now, in addition to infants, toddlers and the mentally incompetent, we can add comatose patients and conjoined twins to your list of non-humans.

You appear to have a very narrow view of what qualifies as a rational mind.

The following is OT but since you asked.
People who are sick or have some medical condition retain their rights, of course.

As to the brain dead, though it’s always wrong for the government to direct your action in the matter, since the person is effectively dead (lost mind therefore lost consciousness), family member are morally justified should they choose to disconnect life support.

You appear to have a very narrow view of what qualifies as a rational mind.

Weren’t you all about google definitions just a few short hours ago?

The following is OT but since you asked.
People who are sick or have some medical condition retain their rights, of course.

What rights? They don’t fit your definition of a human being.

family member are morally justified should they choose to disconnect life support.

For what reason are they morally justified? We can resuscitate people in arrests of various sorts (mostly cardiac), so what is it about being brain dead that says, you can do whatever you want at this point without violating his rights?

No, it’s not by my logic, it is by YOUR logic. I’m glad you can see the implications because my next question was if a woman is infected by a bacteria and clearly still and individual, just what is infecting her during a pregnancy? I’ll let you avoid that question since you’ve given up your previous stance.

Now, apparently, you aren’t willing to claim a woman isn’t an individual just because she isn’t “1) single, 2) separate” from another being.

Which means your quote of the google definition is faulty. If what makes one an “individual” is NOT that they are separate from another being, then why is a pregnant woman an individual, but a baby inside of her is not?

(I know this won’t affect your position, because your position was not arrived at by logic. I am, however, trying to illustrate the illogic of your position for others.)

There are several things “attached” to a pregnant woman’s body that are comprised of human living cells (her skin, various organsetc..) none of which compromise her status as an individual. An embryo is not an organ but it is at the very least comprised of human living cells. In this regard it is no different than other “things” in her body and as such does more to show she’s an individual than to highlight any contradiction in what I’ve said on the issue.

I would say distinct DnA points to a distinct set of human living cells but not necessarily- after all a rabbit has distinct DNA but it isn’t comprised of human living cells. So if Disinct DNA alone isn’t enough to say the cells are human, it most definitely isn’t enough to say the cells are an individuated human being with a volitonal consciousness.

And you know what, sorry to double post, but the thing that really torques me off about this response is that you were the one who just got finished referring to the embryo as living human cells, and then the moment I point out his DNA differs from the mother, you immediately forget an embryo was ever any such thing, and treat me like I’m responding illogically by not accounting for the obvious counter-argument that humans very regularly get pregnant with rabbits or raccoons or other small mammals beginning with ‘r’.

Schaef ,
I honestly appreciate this discussion we’re having and im not interested in offending or disrespecting you. Forgive me. Im in and out of meetings today but let me digest your last and ill explain myself better.

As Rush and I think others have pointed out, what will the pro-abort crowd say if science eventually discovers some gay genome and that can be detected in utero? It’d be pretty amusing to watch the gay mafia fighting the pro-abort cartel over their very existence.

crrr6 on January 22, 2014 at 1:46 PM

When I have been brave enough I have posed this question to liberal acquaintances without attempting to discuss it in a pro-life/pro-abortion discussion, but as ethics (which I teach). It is interesting to watch they first reaction. It is usually the action to speak, then a hand over their mouth. The confusion of two issues (when it is actually one) makes them very reluctant to speak. There normal pre-planned statements about the right of the mother come into direct opposition of gay rights.

I would say distinct DnA points to a distinct set of human living cells but not necessarily- after all a rabbit has distinct DNA but it isn’t comprised of human living cells. So if Disinct DNA alone isn’t enough to say the cells are human, it most definitely isn’t enough to say the cells are an individuated human being with a volitonal consciousness.

beselfish on January 23, 2014 at 12:55 PM

I was waiting for you to come to something like this. The reason every abortion defender goes to issues like “soul”, “consciousness”, and the like is because they know they can’t argue in the material world. This is because, as Schaef pointed out, science clearly shows that the baby is both (a) human (by it’s DNA) and (b) alive (by it’s heartbeat).

So, since you cannot argue the being’s genetic makeup is human (it’s DNA is human) nor that it is not alive, you are left with arguing that it isn’t human because it doesn’t have “volitional consciousness” or “self-awareness” or “a soul”. (Every abortion defender will fall back on one of these.)

How do you measure “volitional consciousness”? Is a newborn baby “volitionally conscious?” If not, is it, therefore, alright to murder the newborn?

If so, just how do you measure that “volitional consciousness” that is possessed by the newborn but not by the 7 month gestation baby?

In fairness, he applied the “rational mind” argument fairly early on, right around the time he asserted that you can determine individuality by looking at a pregnant woman and realizing the baby is hidden from your view, and therefore doesn’t count or something.

This is because, as Schaef pointed out, science clearly shows that the baby is both (a) human (by it’s DNA) and (b) alive (by it’s heartbeat).

I actually didn’t go to the heartbeat, as there are many forms of life we consider as “living” even though they are not complex organisms like adult humans. Having said that, you’d be correct to point out that, by the time a woman begins to wonder if maybe she might be pregnant, usually by that time there is a heartbeat, a rudimentary nervous system, and several other significant features.

How do you measure “volitional consciousness”?
makattak on January 23, 2014 at 1:49 PM

Add “rational mind” to this question and you’re at the heart of it. The thing is, even though “rational” means “having the capacity to reason” and “volitional” means “having the capacity to make your own choices”, he applies the terms in contexts that have nothing to do with reason or choice.

The ones who apply this assertion logically argue that a child is not a “person” until they develop a nominal sense of the “rational mind”, somewhere between 18 months and 2 years. In their eyes (not the law’s), infants prior to this point are disposable without consequence.

Striking the “OOPS” and adding at the end “living cells”, I can agree with that. And then with some edits I would continue as I did earlier and say, distinct DNA may show an embryo is growing, but it isn’t enough to say the embryo is an individuated human being with a rational mind and volitional consciousness.

but it isn’t enough to say the embryo is an individuated human being with a rational mind and volitional consciousness.

beselfish on January 23, 2014 at 4:14 PM

Yeah, about that…

hope you’re not putting me in that camp, btw.

beselfish on January 23, 2014 at 4:17 PM

… the fact that you are NOT in this camp demonstrates how you do not even subscribe to your own criteria when arbitrarily defining human life. Every counter-example I have listed above (with the exception of the baby in utero) has failed to meet one or both of these criteria, and yet you bestow the title of human on all of them.

I figured you might want to come back to that post. You’re talking about your post

The Schaef on January 23, 2014 at 7:57 AM

right?

Well, I’ll give it a shot.

Re brain damaged- the aid to Reagan shot during the attack and the female politician shot a couple years ago are very much conscious, individuated and in possession of a rational mind. Where’s my contradiction? At some point the brain damaged cross over to the brain dead in which case see below.

Re the brain dead- I have no issue with resuscitation. Im not without compassion. I understand that its hard to see loved ones pass however without a brain there is no consciousness. The brain dead person is no longer living as man qua man. It is within the rights of family members to not resuscitate.

Re brain damaged- the aid to Reagan shot during the attack and the female politician shot a couple years ago are very much conscious, individuated and in possession of a rational mind.

By the way, good job taking two high-profile examples that are high-functioning and ignoring the countless thousands of persons who are institutionalized because they lack the capacity for rational thought. Or persons who are catatonic or otherwise non-responsive due to conditions like encephalitis. So you didn’t really answer the question about persons who are alive but not mentally competent.

I’m not engaged in some rhetorical trickery here, Schaef. I’m not interested in evading any questions regarding my position.

The extent to which someone is conscious is not a standard by which to judge whether they are individuals with rights. It’s not about the world of things that one is conscious of that determines whether one is an individuated being of volitional consciousness that possesses individual rights. Healthy people are limited, to varying degrees, in their capacity to grasp reality. Are they not human beings with individual rights? Of course they are. The difference with people who have brain damage, regardless how high functioning, is their medical condition.

It’s actually more like the brain dead have no consciousness, therefore they are not living, therefore they have no rights. This is a little different than “having a prognosis as terminal” because I think of “terminal” as inferring that one has not yet died but will die. And I would say the brain dead are deceased at the moment they are said to be brain dead.

he extent to which someone is conscious is not a standard by which to judge whether they are individuals with rights.

beselfish on January 24, 2014 at 12:03 AM

Yes it is, when you use specific terms like “volitional” and “rational” and “separate”.

Incompetents are not rational.
Infants are not volitional.
Conjoined twins are not separated.

You’re inconsistent when you bestow the title of “human” on people who do not meet your criteria, which I have said from the beginning, so your confusion on this point is puzzling.

You’re arbitrary when you assign subjective criteria that have nothing to do with when people are treated as such, not only by the law, but by even yourself.

We acknowledge the lives of trees and dogs and rabbits and bacteria, and even have a list of criteria by which we generally classify something as living or non-living (homeostasis, organization, growth, etc). But suddenly when the issue is abortion, the bar for a human being alive is way higher.

We acknowledge the scientific classifications for species, particularly through the use of genetics. But suddenly when the issue is abortion, the bar for a human being human is way higher.

A baby in utero is exactly the same as you or I or billions of others. We all go through this process. It is a natural part and critical part of our development. But abortion aims to turn a baby into some nebulous “other” which is not living “enough” and/or not human “enough” to be considered a living human. And why? One reason: to allow people to dispose of the baby in a way that squares a moral circle, and in most cases, to avoid the consequences of a “reproductive choice” they had already made weeks before.

This is a little different than “having a prognosis as terminal” because I think of “terminal” as inferring that one has not yet died but will die. And I would say the brain dead are deceased at the moment they are said to be brain dead.

beselfish on January 24, 2014 at 12:11 AM

A person in cardiac arrest, or who has drowned, is clinically dead, also, and not just a person “who will die”. The brain also stops its activity less than a minute after clinical death. So a person loses its “brain-consciousness” or whatever you propose in numerous cases of clinical death prior to resuscitation. The only difference is that the brain suffers ischemic injury much faster than other organs, and if it is not restarted within a few minutes, the cells can become damaged to the point where the brain is no longer able to regulate the body even if the other organs are restarted.

Science has already found ways to lengthen the time that a person can be revived before the damage to the brain becomes too great. I doubt it can be prolonged indefinitely but I’m sure science still has more work it can do in the field. And all it means is that the clinically dead wouldn’t have rights under your criteria, and therefore none of them should be resuscitated in the first place.

I am lawyer and IMHO it is almost silly to look at this as a legal case…it is a political case, as are so many issues decided by the Supremes and many other courts…the empirical proof on this is always in plurality decisions, and usually what the Justices cites as objective tests in the law are objective only in fantasy land.

My view is that both sides on this issue also look at it too much as a political issue and not enough as an an issue of preserving and supporting life.

My religion tells me life begins at conception so the idea that a newly conceived life is not human is morally wrong, and on a secular basis just silly. BUT in the end I do not want a government to have sufficient power to make decisions about what happens inside of a woman’s body….that is Obamacare on Steroids, something which most conservatives are against.

For the people that really care about life, my view is that 99% of the effort should be directed towards eliminating the many and varied reasons women choose to have abortions, except for the real issue where it is unambiguous that the woman’s life is in danger…

If folks would drop their egos and focus on identifying reasons for abortions and then put time and effort and money in place to eliminate those, we could do the moral thing and save lives

BUT in the end I do not want a government to have sufficient power to make decisions about what happens inside of a woman’s body….that is Obamacare on Steroids, something which most conservatives are against.

georgealbert on January 24, 2014 at 9:04 AM

I am a big supporter of personal liberty, but the most basic right a person has is the right to life. If our laws do not defend a life from other people’s decisions, it’s hollow.

Libertarians are considered conservatives by most people who post at Hot Air. They are in favor of abortion rights so you have made a false statement based on emotions.

jerryofva on January 22, 2014 at 11:03 AM

Libertarians are not universally “in favor of abortion rights”–see “Ron Paul,” “Libertarians for Life,” etc. One challenge of libertarianism is a lack of consensus on almost anything except decriminalization of drugs.

I am appalled at the lack of understanding that you and other “constitutionalists” have of the actual document.

jerryofva on January 22, 2014 at 11:10 AM

Thanks for the condescension, you Dale Carnegie graduate, you. Although I certainly can’t speak for all conservatives, there are plenty who recognize that overturning Roe v. Wade throws the matter back to the states. They also recognize that absent a tyrannical federal government, many states would immediately place significant restrictions on abortion.

How is it that mistake, failure, ignorance and/or debauchery, all with regularity (sadly, I might add) cancel out the nature of a man’s consciousness?

Infants are not volitional

They don’t choose what cartoon they like to watch or if they’re in the mood for breast milk or oatmeal, but that doesn’t matter because an infant’s consciousness is volitional in nature. We know this because they are individuated human beings with a mind. We have yet to find one of those that is not of a volitional consciousness.

Conjoined twins are not separated

As a set you have to agree that they are individuated from the mother, don’t you? I don’t see how the standard I have set is in contradiction. The child that has been born (in this case conjoined twins) is individuated with a fully formed mind (hopefully two) and therefore each possessing a rational, volitional consciousness. They were not individuated at birth as you and I but, I don’t think I have made such a requirement in my statements.

I hope I haven’t frustrated you any more. You continue to challenge me in what I consider to be an intellectually honest and genuine way. Thank you for that.

But I do see it as clearly preferable that an unwanted pregnancy not occur, thus rendering the issue moot.
And that requires education and access to sex ed.

verbaluce on January 22, 2014 at 2:50 PM

There is no evidence whatsoever that sex ed has even a small effect on teen pregnancy.

Anybody who proposes sex ed as a solution to “unwanted pregnancy” deserves to be arrested for criminal negligence. Children are led to commit unsafe and indecent acts based on the gross misinformation handed out in the name of “sex education.” Condoms are notoriously unreliable as birth control, especially for teens, and are not designed to be disease control. Relying on condom use and calling it “safe” is the surest way to get your children pregnant or responsible for someone else’s pregnancy.

In actual fact, sex education is properly the province of parents. The government, in the form of the school system, has not the slightest business involving itself in that arena, and has a record of absolute failure in the attempt.

How is it that mistake, failure, ignorance and/or debauchery, all with regularity (sadly, I might add) cancel out the nature of a man’s consciousness?

I don’t understand your question. Everybody makes mistakes. I did not say anything about “people who make mistakes”. I said people who are medically incompetent. As in, clinically. As in, institutionalized. And I’m pretty sure I’ve used most or all of those descriptors at least once if not more.

Now stop pretending you don’t know what I’m talking about and answer the question: if your definition of life requires a rational mind, why is a mentally incompetent person (not in possession of a rational mind) not a living human to you?

“that doesn’t matter because an infant’s consciousness is volitional in nature.”

No. It’s not. An infant does not have the capacity to make choices. I’ve raised three, and we’re about to have a fourth, and none of them were making conscious choices between alternatives until they were maybe a year and a half. They don’t even really act out in response to a base desire until about six months, when their minds develop to the point where they can retain an object even if it’s out of direct line of sight, and they have the gross motor skills to move towards things or reach for them or what have you.

I really don’t think you have a keen grasp on what volition actually means.

As a set you have to agree that they are individuated from the mother, don’t you?

You didn’t say “individuated from the mother”. You used individuated to mean singular and unique, which you are extrapolating to mean “physically detached”. There is no difference in this definition between being physically attached to the mother and physically attached to the sibling. And just as being physically conjoined does not determine someone’s distinctness, neither does being attached to the mother change the distinct nature of the baby.

The mother without the baby is still a whole person unto herself, and the baby without the mother is still a whole person unto himself; they have different genetic signatures and each their own sets of parts and pieces, neither being an “organ” or “abnormal growth” of the other.

Isn’t that the operative term, “medically”? As in, the people you refer to are sick. These are people who are significantly less functioning and make less sense than Jim Brady or Gabrielle Giffords but, until they cross the line to “brain dead” they remain individuals with rights.

, and none of them were making conscious choices between alternatives until they were maybe a year and a half. They don’t even really act out in response to a base desire until about six months,

First off congratulations on your 4th baby. You must be very proud and looking for a bigger house :o) We have two little ones and might’ve gone for 2 more but, we got a late start so we’re raising two and having fun.

In response to your quote above, I offer a rhetorical question. How is it possible that babies and toddlers get to the point you reference without first possessing a volitional consciousness?

There is no difference in this definition between being physically attached to the mother and physically attached to the sibling.

Yes there is and the context of the discussion establishes that. It is the mother’s right to abortion that I am asserting therefore it is rather significant that we know whether the cluster of human living cells is in her womb or individuated from her. Whether it’s individuated from some other human being is not relevant. I will grant you that usually if individuated from her it most always is separate from all others but, that is not relevant when arguing for the MOTHER’S right to an abortion.

The people I refer to are absent a “rational mind”. If they retain their rights, then “rational mind” is not a requirement. You referred to brain death, which is not equivalent to a rational mind, it is the state in which the organ suffers sufficient ischemic injury that it cannot be revived. A person can continue to have brain function without retaining the capacity for reason.

I offer a rhetorical question. How is it possible that babies and toddlers get to the point you reference without first possessing a volitional consciousness?

Do you realize that what you are asking is effectively the same as asking: how do your babies develop the ability to make decisions without first possessing the ability to make decisions?

The concept of developing a skill implies its absence in the early stages of the child’s life. You might as well ask how I can learn to play piano without first possessing the knowledge of how to play piano.

Yes there is and the context of the discussion establishes that.

No, it doesn’t. “It’s different because it’s the mother” is arbitrary reasoning; the specific topic of discussion is not a differentiating factor unto itself. There has to be an actual reason that the situation is different. There has to be an actual reason that being attached to the mother “doesn’t count” as an individual but being attached to any other human is perfectly fine.

Without that reason, there are only two ends to the logic of attachment: either physical attachment eliminates individuality, in which case conjoined twins are not human and can kill each other with impunity; or physical attachment has no impact on the distinct nature of the baby. The very act of being “attached to” something implies the joining of two separate entities, as opposed to something being an integral part of another.

The baby is not an “organ” or a “growth”; it differs genetically from the mother, and each is a whole being without the other. A mother can have a appendectomy to remove a part of her body, but delivering (or aborting) a baby is not a “babyectomy” for the mother, nor a “mommyectomy” for the baby.

It’s the same baby (and the same mommy) at six months after birth as at birth, or at six months before birth; it’s just at a different stage in its complete life cycle.

. A mother can have a appendectomy to remove a part of her body, but delivering (or aborting) a baby is not a “babyectomy” for the mother, nor a “mommyectomy” for the baby.

This is only because you start with the the premise that the cluster of living human cells at conception has the same rights as a an infant. They are not the same thing. The embryo is not an actual human being. Thank you for the discussion.

I said goodbye a bit too soon. Guess I missed this earlier. Yes its at a different stage. At conception and for a few weeks after its at the stage where it has no mind and no consciousness, nevermind separate or volitional attributes of being a human being. Therefore it has no rights.

This is only because you start with the the premise that the cluster of living human cells at conception has the same rights as a an infant. They are not the same thing.

We’re back to the old “cluster of cells” argument, I see. By the time a woman starts showing symptoms that might make her wonder if she’s pregnant, we are so far past the “cluster of cells” stage, it’s not even funny. One of the first observable traits of the baby (for the mother it’s the change in hormone levels) that confirms a viable pregnancy is the heartbeat. And this can be seen at five weeks. And you’re talking about babies through the first trimester.

So let’s go with your assertion that it’s not the same thing. At what point in a pregnancy does the not-a-human-even-though-it-is-the-genetic-offspring-of-two-other-humans disappear from the womb to be entirely replaced by a baby-which-is-totally-human? After all, if they are not the same thing, then we must be talking about two different beings that exist at two different times in the pregnancy.

And I won’t even go back over the fact that you don’t apply your criteria of “separation” or “volition” consistently; that’s old ground and it can just remain until you address it or find better criteria. I will ask you why you say a person has to have a mind (an abstract concept at best, but at least you dropped “rational” from your definition) in order to have rights. If the human right to life is inherent, the implication is that we don’t get to decide who is human “enough” to “count”.

let me restate a bit more methodically. My point is the embryo has no rational mind, no consciousness and not individuated therefore the mother is within her rights to abort the pregnancy. Other than, perhaps, brain dead, I have made no condition that says maladies or deformities upon birth invalidate it’s inalienable right to life. Nor have I made any condition as to the number of embryos in her womb.

The conjoined twins are conscious but not individuated? fine. I would have to say they have rights because they are conscious human beings with a deformity. Though they are not individuated from each other it is a given that they are intended to have been born that way because it is explicit and inherent in human beings that we are individuated separate entities. There is no species known as conjoined twins. They are simply deformed human beings. Deformed because human beings are separate individuated entities by nature.

I have made no condition that says maladies or deformities upon birth invalidate it’s inalienable right to life.

You made three at a minimum: the capacity for rational thought, the ability to make decisions, and physical separation from another person.

Though they are not individuated from each other it is a given that they are intended to have been born that way because it is explicit and inherent in human beings that we are individuated separate entities.

Though a baby in utero is not individuated from his mother, it is a given that he is intended to be born that way, because it is explicit and inherent in human beings that we are individuated separate entities.

There is no species known as conjoined twins. They are simply deformed human beings.

There is no species known as fetus. He is simply a human being at an early stage of development.

I see what you did there. Pretty nifty. I’m not sure the second one is apples to apples-

Though they are not individuated from each other it is a given that they are intended to have been born that way because it is explicit and inherent in human beings that we are individuated separate entities.

Though a baby in utero is not individuated from his mother, it is a given that he is intended to be born that way, because it is explicit and inherent in human beings that we are individuated separate entities.

But, I’m going to double check my thoughts on that before I put you through more.

I wonder if it’s possible for us to keep in touch on this one outside of this forum. I imagine HotAir will eventually kill this thread yes? Are you interested in exchanging a few emails on this topic?

So let’s go with your assertion that it’s not the same thing. At what point in a pregnancy does the not-a-human-even-though-it-is-the-genetic-offspring-of-two-other-humans disappear from the womb to be entirely replaced by a baby-which-is-totally-human?

So the brain is not yet grown until after week 27. That means then, there is no consciousness. Forget about the individuated and volitional characteristics, the embryo doesn’t even possess consciousness. The infant most certainly possesses consciousness. The infant is an actual human being with the consciousness of a rational mind and therefore possesses inalienable right to life. An embryo is not this therefore it does not possess the right to life.

So, to answer your question I’m going to say that when the embryo is ready for birth is the point in the pregnancy when the baby possesses the individual right to life and abortion would be a crime. I say “when ready for birth” because, the nature of man is also to be individuated. So, just as changing hormones in the mother indicate a an embryo is growing, the beginning of the birth process indicates and individual is ready to be born.

And, not that we were talking about it but, yes, I think partial birth abortions are an egregious violation of that baby’s individual rights.

They were the lynchpin of your argument for days. You continue to refer to them later in this post.

What I mean is, with the consciousness born of (i.e. brought into existence by) a rational mind.

This is the opposite of what you outline above. You attribute consciousness to the baby before you attribute reason.

So, to answer your question I’m going to say that when the embryo is ready for birth

Well, it passes the embryonic stage after the second month of development, so I’m going to hazard a guess and say an embryo (not grown in a lab or The Matrix) is never “ready for birth”. But let’s assume you meant “baby”, and examine the idea of being “ready for birth”:

100 years ago, a baby born before 35 weeks had almost no chance of survival. So, logically, a baby was not a living human until 35 weeks gestation.

50 years ago, a baby born before 30 weeks had almost no chance of survival. So, logically, a baby was not a living human until 30 weeks gestation.

With today’s medical technology, a baby born at 25 weeks has an outside shot, and some have even been born at 21 weeks and survived.

So, why would three babies, all at the exact same stage of development, be considered a living human, or not, based not on their actual state of existence, but on the medical technology of the outside world at that time?

For that matter, supposed my wife and I are traveling in a developing nation, and the pregnancy becomes distressed. Is a baby at 30 weeks not a living human just because of the location we happen to be in, and the corresponding access to advanced medical technology even in the same year?

I say “when ready for birth” because, the nature of man is also to be individuated.

It is also the nature of man to go through a gestation process whereby he can develop in a comparatively safe environment. Abortion disrupts a natural process and ends a life that in many cases would be perfectly fine if left to its natural course.

Moreover, there’s another claim that needs to be examined:

So the brain is not yet grown until after week 27. That means then, there is no consciousness.

By what miraculous logic do you conclude that, because rapid brain development occurs at a particular stage, that there is no consciousness in the baby prior to that point? It’s just one particular stage of development, part of a continuous cycle. This point is no less arbitary than the one that says a baby who has not achieved (actual) volition is not a conscious human being, at around two years. For that matter, the thing that separates us from the animals, our prefrontal cortex, is not fully mature until age 25. One could just as easily argue that we have not achieved true “humanity” as long as that critical element has not fully developed.

But going in the other direction, the baby is reacting to external stimuli months earlier, as its synapses are already kicking in. The neurons themselves begin dividing up into the different areas of the brain only six weeks into development! You can actually measure the baby’s brain waves with an EEG at this point!

Given all this, I’m having a hard time understanding where you understand the idea of “consciousness” to reside, such that you can declare it non-existent until the third trimester. My first instinct is to liken this to “cluster of cells” type comments (and this is a wide phenomenon, I’m not picking on you specifically), whereby people try to come up with excuses why a baby is not “human enough” until some arbitary point when they decide it is “obviously” wrong. Well, apparently it’s not obvious to everybody, because babies are not given nearly enough credit for the complexity of their early development, and as we’ve noted a couple times before, even being born isn’t good enough for some people.

hope you’re still around. Sorry for the long hiatus but, your last post took a while to get to and digest. As it is, i didn’t respond to every point you make but, it’s been long enough so here’s what i can offer as more explanation for my position.

“It is also the nature of man to go through a gestation process whereby he can develop in a comparatively safe environment”

The “nature of man” is that which distinguishes it from all other things in reality (i.e. what defines man qua man). All animals go through a gestational period. therefore “to go thru a gestational process” is not a distinguishing characteristic of man, therefore it is not the nature of man.

“Abortion disrupts a natural process and ends a life that in many caseswould be perfectly fine if left to its natural course.”

The issue is not whether it disrupts “a life” but whether it disrupts the life of an actual human being. I get that given the context you may be using “a life” to mean a human being. One of the things I consider implicit in my comments is that it’s important to be specific. I concur that human cells are human life and there is no question that the embryo and baby possess those. However, only one is a human being. After all, a woman’s egg possesses human cells and therefore indicative of “a life”, but is the egg a human being? Of course not.

“By what miraculous logic do you conclude that, because rapid brain
development occurs at a particular stage, that there is no consciousness in the baby prior to that point?”

The law of identity supports my “miraculous logic”. It says, to be
something is to be SOME-thing (i.e. to be a particular thing). There is no human BEING if there is no consciousness. There is no consciousness if there is no brain/rational mind. And, individual rights are for actual human beings (individual rights are something in particular as well, don’t forget). Therefore, no brain or brain dead means no rational mind and no corresponding consciousness and therefore no right to life.

Am I still being arbitrary?

“This point is no less arbitrary than the one that says a baby who has not achieved (actual) volition is not a conscious human being, at around two years. For that matter, the thing that separates us from the animals, our pre-frontal cortex, is not fully mature until age 25.”

Whether the human being is an infant or a 25 year old, his conscious is fundamentally the same and at the same time fundamentally different from animals. The best description that identifies the similarity between all animals known as “man” and also distinguishes man from all other animals is that man possess a volitional consciousness. It may be less mature as an infant, but the point relevant to our discussion is that in the infant it exists and in the embryo it does not.